Boss v. Castro, 14–2996.

• Decision Date: 18 March 2016
• Docket Number: No. 14–2996.,14–2996.
• Citation: 816 F.3d 910
• Parties: Larry A. BOSS, Plaintiff–Appellant, v. Julian CASTRO, Secretary of Housing and Urban Development, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

816 F.3d 910

Larry A. BOSS, Plaintiff–Appellant,

v.Julian CASTRO, Secretary of Housing and Urban Development, Defendant–Appellee.

No. 14–2996.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 2015.

Decided March 18, 2016.

James Lawrence Fuchs, Snider & Associates, Baltimore, MD, for Plaintiff–Appellant.

Jonathan C. Haile, Peter Francis Sullivan, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.

Before EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge^* .

REAGAN, District Judge.

Larry Boss worked as a general engineer for the U.S. Department of Housing and Urban Development ("HUD") from 2002 to 2011. Pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. § 2000e–16 ), he sued the HUD Secretary¹ on theories of workplace discrimination (Boss is an African–American), retaliation (for a prior EEOC discrimination complaint), and hostile work environment. The district court granted summary judgment against Boss. For the reasons set forth below, we affirm.

I. Background

Our review of the case requires some preliminary discussion regarding two matters.

First, Boss has challenged the district court's application of Local Rule 56.1, which controls the presentation of evidence at the summary judgment stage. See N.D. Ill. L.R. 56.1.; Petty v. City of Chi., 754 F.3d 416, 420 (7th Cir.2014). The rule requires a movant to submit a statement of material facts consisting of enumerated, short, numbered paragraphs with specific references to the record. N.D. Ill. L.R. 56.1(a)(3). The non-movant counters with correspondingly numbered paragraphs summarizing the movant's position, responses (with specific cites to the record), and a statement of any additional facts that support denial of summary judgment. N.D. Ill. L.R. 56.1(b)(3). The district court's discretion to require strict compliance with Local Rule 56.1 has been upheld time and again. See Petty, 754 F.3d at 420 ; Benuzzi v. Bd. of Educ. of City of Chi., 647 F.3d 652, 654–55 (7th Cir.2011) ; Koszola v. Bd. of Educ. of City of Chi., 385 F.3d 1104, 1109 (7th Cir.2004) ; Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002).

In comparing the district court's thorough recitation of the facts to Boss' Rule 56.1 submission, we find no abuse of discretion. Tellingly, Boss could not dredge up a single specific fact that the district court ignored that would have materially altered the Court's Title VII analysis. Notably, litigants who challenge a district court's application of the Northern District's Local Rule 56.1 must point to a fact or facts that (1) should have been considered under the local rule; (2) were not considered; and (3) are material to the summary judgment analysis. Instead, Boss points to a proverbial haystack and asks us to find his needle. We decline to do so. See D.Z. v. Buell, 796 F.3d 749, 756 (7th Cir.2015) (courts not required to "scour the record looking for factual disputes" or "piece together appropriate arguments").

Next, we note that a great deal of Boss' arguments and evidence is impermissibly intertwined with—and relies upon—the conclusions of an administrative law judge who, in January 2009, held a hearing on Boss' 2007 Equal Employment Opportunity Commission complaint that included testimony from Boss and several other witnesses. While we can consider admissible statements from witnesses in that case as relevant evidence here, the value of the administrative judge's legal conclusions (or, indeed, her factual assertions—she had no personal knowledge of any factual matter) as applied to this case is nil.² Boss cites no precedent—and we find only contrary case law—for the notion that an administrative judge's legal conclusions should have preclusive effects on subsequent federal court proceedings. See Welch v. Johnson, 907 F.2d 714, 719 (7th Cir.1990) (citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 796, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (unreviewed administrative proceedings have no preclusive effect in federal court Title VII litigation)).

II. Facts

Boss, an African–American, worked for HUD from 2002 to 2011. For about seven of his nine years, he was supervised by Eleny Ladias, who evaluated him at the "highly successful" level from 2002 through 2006. Then, in 2007, he contacted an EEOC counselor and initiated a race, sex, and age discrimination complaint against Ladias. The administrative law judge found no discrimination based on Boss' immutable characteristics, but did find Ladias discriminated against him for filing the EEOC complaint.

In May 2009, Boss made another informal complaint (this time claiming only race discrimination and retaliation). He alleged several discriminatory and retaliatory acts, including being put on a performance improvement plan ("PIP") because he was behind on "closing out" his assigned grants (presumably money given by HUD to qualifying organizations or individuals). The PIP was initiated in late June or early July 2008, and ended in November 2008 after Boss completed his closeouts. Another employee, Alease Thomas (who helped Boss' contemporaries process their grants), assisted Boss with the substantive parts of his closeout assignment.

Boss complained about several other matters. He was marked absent without leave ("AWOL"); he was criticized for not attending a teleconference; he was assigned cases from a retired HUD engineer; and he was required to come to work on what was normally his assigned telework day. Evidence in the record shows Boss was indeed absent without having sought leave from his supervisors. He had also been asked to substantiate his ability to work from home after he was unable to complete a task assigned by his supervisor.

In October 2009, after HUD received notice of the administrative judge's ruling against Ladias, Boss was transferred to the supervision of Elmore Richardson, who changed Boss' midyear evaluation from "highly" to "fully" successful (allegedly in retaliation for Boss' EEOC activity, but—according to Richardson—really because it was discovered that Thomas had helped with the late 2008 closeouts).

In July 2012, Boss filed this suit pursuant to Title VII. Generally, he alleged discrimination (on the basis of his race), retaliation (on the basis of his EEOC complaints), and a hostile work environment (which we will generously construe as stemming from racial motives or from a retaliatory animus). The district court granted summary judgment, finding Boss had not adduced evidence to support the assertion that any of the incidents constituted an adverse employment action, that Boss was not subjected to disparate treatment relative to similarly-situated employees, and that Boss had not suffered from a work environment that could be shown to be objectively hostile. Boss appeals, and we affirm.

III. Analysis

We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Gerhartz v. Richert, 779 F.3d 682, 685 (7th Cir.2015). Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) ; Alexander v. Casino Queen, Inc., 739 F.3d 972, 978 (7th Cir.2014). We construe all inferences in the non-movant's favor, but he is not entitled to the benefit of inferences that are supported only by speculation or conjecture. Nichols v. Mich. City Plant Planning Dept., 755 F.3d 594, 599 (7th Cir.2014). If there is no triable issue of fact on even one essential element of the nonmovant's case, summary judgment is appropriate. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.2009). We may affirm the district court's grant of summary judgment for any reason supported by the record. Wragg v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir.2010).

Title VII makes it unlawful for an employer to discriminate against any individual "because of such individual's race." 42 U.S.C. § 2000e–2(a)(1) ; Alexander, 739 F.3d at 979. The statute also forbids employers from retaliating against employees for complaining about prohibited discrimination. 42 U.S.C. § 2000e–3(a) ; Chaib v. Indiana, 744 F.3d 974, 986 (7th Cir.2014). And as pertinent to this case, Title VII prohibits subjecting an employee to a hostile work environment. Orton–Bell, 759 F.3d at 773.

Boss' failure to show he suffered an adverse employment action dooms his discrimination and retaliation claims. As to his hostile work environment claim, Boss cannot show he was subjected to a workplace that was objectively abusive.

A. Discrete Incidents of Discrimination & Retaliation

Though the framework has received criticism, see Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir.2012) (Wood, J., concurring), litigants and courts properly discuss Title VII discrimination and retaliation claims using the language of the "direct" and "indirect" methods of proof. Simpson v. Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 789–90 (7th Cir.2015) (discrimination); Harden v. Marion Cnty. Sheriff's Dep't, 799 F.3d 857, 861 (7th Cir.2015) (retaliation). Under either method, the ultimate question at the summary judgment stage is whether a reasonable jury could find prohibited conduct. See Simpson, 780 F.3d at 790. But we still must consider the two methods separately when reviewing a grant of summary judgment. Id.

1. The Discrimination Claim

In a Title VII discrimination case, avoiding summary judgment using the direct method requires a plaintiff to marshal sufficient evidence (either direct or circumstantial) that an adverse employment action was motivated by discriminatory animus. Coleman, 667 F.3d at 845. Direct evidence—an overt admission of discriminatory intent—is rare, and not at issue where, as here, no supervisor admits racial motivation. See Simpson, 780 F.3d at 790.

Circumstantial evidence typically includes (1) suspicious timing, ambiguous statements (oral or written) or behavior toward, or comments directed...